AB v R - [2016] NSWCCA 191

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AB v R (Cth) [2016] NSWCCA 191
Hearing dates: 15 August 2016
Date of orders: 15 August 2016
Decision date: 24 August 2016
Before: Hoeben CJ at CL at [1]
Campbell J at [52]
Button J at [53]
Decision:
Bail refused.

Catchwords: BAIL APPLICATION – 17 year old – charged with intentionally doing an act in preparation for or planning a terrorist act – threatening posts on Facebook – psychiatric issues – history of threats and self-harm – significant improvement while in custody – whether exceptional circumstances established – whether applicant would pose an unacceptable risk if released – bail refused.
Legislation Cited: Bail Act 2013 (NSW) – ss 17, 18, 19, 49
Crimes Act 1914 (Cth) – ss 3, 15AA(1), 16A(3)
Criminal Code Act 1995 (Cth) – s 101.6(1)
Young Offenders Act 1997 (NSW)
Cases Cited: AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042
R v Hantis [2004] NSWSC 153
R v NK [2016] NSWSC 498
Category: Principal judgment
Parties: AB – Applicant
Regina – Respondent Crown (Cth)
Representation:
Counsel:

Mr M Johnston SC – Applicant
Mr I Bourke – Respondent Crown (Cth)
Solicitors:
Eidan Havas & Associates Lawyers – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2016/187430
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the applicant for bail is not to be published.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Bail

Citation:

AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042

Date of Decision:

29 July 2016

Before:

Beech-Jones J

File Number(s):

2016/187430

Judgment

HOEBEN CJ at CL:

Nature of proceedings

The applicant (AB) was charged with intentionally doing an act in preparation for or planning a terrorist act, contrary to s 101.6(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code). The maximum penalty for that offence is imprisonment for life.

The applicant was also charged with using a telecommunications network with the intention to commit a serious offence, contrary to s 474.14(2) of the Criminal Code. The maximum penalty is imprisonment for life.
On 8 August 2016 the applicant was further charged by Court Attendance Notice with an offence under s 474.15(1) of the Criminal Code being an offence of using a carriage service to threaten to kill. The maximum penalty for that offence is imprisonment for 10 years.
The applicant was taken into custody and admitted to the Cobham Juvenile Justice Centre on 15 June 2016. Bail was refused in the Parramatta Children’s Court. A further application to the Supreme Court for bail (Beech-Jones J) was refused on 29 July 2016 (AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042). Application was then made to this Court pursuant to s 49 of the Bail Act 2013 (NSW) (the Act) for the applicant to be released on bail.
The matter came before this Court on 15 August 2016. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v R

Details

AGLC: AB v R (Cth) [2016] NSWCCA 191
Case: [2016] NSWCCA 191
Decision Date: 24 August 2016

CaseChat Overview and Summary

AB, a 17-year-old, applied for bail in the Supreme Court of Victoria, charged with offences related to planning a terrorist act. The case involved allegations that AB had made threatening posts on Facebook and was potentially planning a terrorist act. AB had a history of psychiatric issues, threats, and self-harm, which the prosecution argued made him a risk if released. The court was tasked with determining whether exceptional circumstances existed to grant bail and whether AB would pose an unacceptable risk to the community if released.

The legal issues the court had to decide included whether AB's psychiatric history and threats constituted exceptional circumstances warranting bail and whether there were sufficient grounds to believe that AB would not pose an unacceptable risk if released on bail. The court considered the nature and seriousness of the offences, AB's criminal history, and his conduct while in custody, including his significant improvement. The prosecution argued that AB's history of threats and self-harm, coupled with the gravity of the charges, indicated a high risk if released.

The court found that, despite AB's significant improvement while in custody, his history of psychiatric issues and threats posed a substantial risk. The court held that exceptional circumstances were not established and that AB would likely pose an unacceptable risk if released. Consequently, the bail application was refused. The court emphasised the seriousness of the charges and the need to protect the community from potential terrorist activities.

The final orders of the court were that AB's bail application was refused, and he was to remain in custody pending further court proceedings. The court's decision reflected the need to balance the rights of the accused with the imperative to safeguard public safety.

Orders